Since last May, I’ve been writing about arrests in Jones County, Mississippi of several travelers who write on the site MotorHomeDiaries.Com. They were stopped while passing through. They were arrested under a typically wrongheaded and vague use of the disorderly conduct statute, charged with failure to follow the lawful order of a law enforcement officer. They were convicted in justice court and then appealed to County Court, where they will get a de novo appeal (for non-lawyers– an appeal where the appeal court starts from scratch, a complete do-over, rather than just reviews what previously happened).
They’ve filed a series of interesting motions to dismiss raising flaws in the arrest affidavits. The first notes that an essential element of an arrest for possession of beer in a dry county requires showing when the county held an election on whether the county would be dry. The other motions are more interesting, because they highlight the common police misunderstanding about disorderly conduct arrests– police officers think they can tell someone to do something, and when they don’t, arrest. One of the arrests was based on an order to put down a video camera. Period. The other affidavit alleges that the offense was committed “by arguing with the officer, refusing to put his hands behind his back, and by taking an aggressive stance toward the officer.”
The offense requires a refusal to follow a lawful order of an officer under circumstances that a breach of the peace was either intended or unlawfully risked by the defendant’s conduct where the officer had authority to then and there arrest any person for a violation of the law. This is three distinct elements, two of which can’t possibly have been met, according to the motions:
1) Refusal to follow a lawful order– here the “arguing” and the video camera have first amendment implications
2) where it could cause a breach of the peace– the video camera affidavit is risible on this point. I suppose the “taking an aggressive stance toward the officer” allegation is an attempt to meet this standard.
3) the officer has authority to arrest. This doesn’t mean the general authority of an officer to make an arrest, it requires that there must be something happening then and there that is about to give the officer authority to arrest someone– a fight or the like about to break out (or already occurring). An officer and a couple of guys standing on the roadside doesn’t meet this standard.
The motions are really clear in the way they break down the requirements and due process problems of disorderly conduct charges. There’s some caselaw in there, too; should be interesting reading for anyone who deals with misdemeanor charges. Here are the motions.
h/t Habeas.
This is really good news. How my heart thrills to read those arguments, especially the one regarding the affidavit against the videographer, who is actually a member of the media performing a media function.
I have a personal interest in this, as I was arrested in a similar circumstance, but on a private affidavit, which alledged that I created a “breach of the peace” by “refusing to stop filming” a meeting of the Democrat Executive Committee of Leflore County.
It was being held in a public place/public forum. The person who signed the affidavit against me was Tyree Irving, who is now a judge on the court of appeals.
Irving and the city judge (who was present at the meeting) used their connections to the city police to have a warrant drawn up, signed by the city judge on the spot, and handed to the police, who then arrested me based upon that private affidavit and that bench warrant. IOW, they had the police haul off a member of the press in order to stop him from covering a public meeting in a public place.
Naturally, I was convicted in city court, and appealed to the County Court. The charge was dismissed by the court on the grounds that the affidavit failed to state any criminal conduct, i.e., it was no crime to videotape a public event, even if some people there didn’t want it filmed.
In my case, I had not refused any order of any policeman. I had refused the order of the Democrat Executive Committee to stop filming their meeting which they were holding in a public place.
Ah, the fun of being a member of the “alternative press.”
I hope these guys take Jones County to the cleaners.
John Pittman Hey
The Taxpayers Channel
Good luck to these guys. Looks more like officers making arrest to line the county coffers.
State Judicial moto, Another day another dollar, yours.
if a constitutional challenge is made to statute, notify AG as per Miss. R. Civ. P. 24. hope you win
Isn’t it illegal under the Federal 1968 Omnibus Crime Bill to audiotape a conversation unless at least one of the participants consents?
If the videocamera/audio operator was filming the arrest and was not a part of the arresting process, I can see why the police responded down in Jones County.
A few years ago, Justice Scalia was speaking to the Presbyterian High School students in Hattiesburg. A student newspaper reporter was taking down notes as Justice Scalia’s spoke, when “security” came and confiscated her notes.
As I recall, Scalia stopped his speech and ordered the confiscation by security. He later apologized.
I don’t recall the high school reporter taping the speech, just transcribing his comments by hand as he spoke.
Ah, yes. Cash register justice. Those Shipley donuts don’t just magically appear over in the Sheriff’s Dept.
To T. Gentry,
There were persons in the “conversation” that consented to the recording. The gentleman’s colleagues certainly wanted the incident taped, as it proved they were committing no crime and that the arrest was improper.
Also, that restriction would not apply to public speech in a public place. Scalia had his hand slapped in that incident, and the rules that he had always imposed on his public addresses were changed.
Think about it: if your point were relevant, EVERY act of a journalist in recording what happened in public would be subject to Federal criminal process. As we all know, that cannot be correct.
John Pittman Hey
The Taxpayers Channel
I am certainly not condoning what happened in Jones County. I think the World would be a better place if every citizen had a digital camera, an internet connection and a YouTube account. It scares the hell out of me to see the MHP running up and down the roads armed with M-16s and in some cases the H&K MP-5s.
But on the issue of the legality of audio recordings, it was explained to me this way:
” Expectation of privacy, is the compeling argument before a court.
“For example: SCOTUS has ruled if someone “steals” your garbage out by the curb, not illegal for them to have done so inasmuch as you have no expectation of privacy as to the contents therein. Another example: You’re having a conversation in a public place; if someone uses a shotgun mic to record that conversation, perfectly legal. At least, that’s the way it was.”
Maybe the courts have ruled that the “conversation” between an arresting police officer and a suspect is a police matter? Do Jones County police officers routinely record arrests?
Recommended reading is Zeitoun by Dave Eggers.
Post Katrina legal chaos of this type. Arrest without charges, imprisonment without representation or process, confiscation of money in possession of those arrested.
The fact that these acts were not an accident.
T. Gentry, you nailed it re: expectation of privacy. Cops doing their jobs in public have none.
I’m experiencing trouble seeing your site clearly through the newest release of Opera. It is fine in IE and Firefox though.
This situation is repeated countless times each day I am sure. Most people just comply and do what they are ordered to by the police. So when a small minority actually decides to make use of their Constitutional rights – they get hammered down. Any response that is not total submission is usually handled with violence and charges are written up as “Resisting Arrest”
I have a feeling the Jones County prosecutors won’t let this one go. They are way too frightened that they will get sued big time by these guys. They will file additional charges, the cops will lie like crazy in the hearing, and these guys will be lucky to get off with less then 5 years in the slammer. The cops will testify that all three guys assaulted the cops (felony), robbed a grocery store, beat a gay black man to death, sold acid to and then raped a 6 year old girl, smoked crack, practiced witchcraft, drank blood, etc etc etc…
[...] NMissCommentor.com just broke the news of lawyers filing a motion to dismiss our charges on appeal: Since last May, I’ve been writing about arrests in Jones County, Mississippi of several travelers who write on the site MotorHomeDiaries.Com. They were stopped while passing through. They were arrested under a typically wrongheaded and vague use of the disorderly conduct statute, charged with failure to follow the lawful order of a law enforcement officer. They were convicted in justice court and then appealed to County Court, where they will get a de novo appeal (for non-lawyers– an appeal where the appeal court starts from scratch, a complete do-over, rather than just reviews what previously happened). [...]